Citation Nr: 1755049 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 11-26 550A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a kidney disability. 2. Entitlement to service connection for a tongue disability, claimed as scarring. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Owen, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1968 to February 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which, in pertinent part, denied service connection for kidney and tongue disabilities. The Veteran filed a timely notice of disagreement (NOD) in April 2010. The Veteran filed a VA Form 9 in October 2011 and requested a hearing. In January 2016, the Veteran indicated that he wished to withdraw his request to appear at a hearing before a Veterans Law Judge. See January 2016 correspondence. Thus, the Board deems the request for a hearing withdrawn. 38 C.F.R. § 20.704(e) (2017) (providing that a request for a hearing may be withdrawn by an appellant at any time before the date of the hearing). In July 2016, the Board remanded the case for further development of the record, including obtaining outstanding records. There has been substantial compliance with the requested development. Stegall v. West, 11 Vet. App. 268 (1998); see Dyment v. West, 13 Vet. App. 141 (1999). In a March 2016 rating decision, the RO granted increased disability ratings for degenerative arthritis with intervertebral disc syndrome of the lumbar and thoracic spine; degenerative joint disease, residuals of a left shoulder injury; and cervical degenerative joint disease with intervertebral disc syndrome. The Veteran did not file a timely NOD for this decision; therefore, these claims are not before the Board. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this case should take into consideration the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran contends that service connection is warranted for kidney and tongue disabilities. Specifically, the Veteran states that during a motor vehicle accident while in service, his kidney was bruised and lacerated and that he has had pain in the area ever since. Id. The Veteran's service treatment records reflect that in September 1970 while in service, the Veteran was hospitalized with multiple contusions, including to the back and ribs on the left side and an acromio-clavicular subluxation following a motor vehicle accident. The Veteran's January 1971 separation examination is silent with regards to complaints of or treatment for a kidney problem. Post service treatment records reflect that the Veteran has reported nocturia and urinary urgency. See July 2010 Social Security Administration examination report. The Veteran has not been afforded a VA examination in connection with his claim for a kidney disability. A VA examination is required where the record includes (1) competent evidence of a current disability or continuous symptoms since service; (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with a Veteran's service or with another service-connected disability; and (4) lack of sufficient competent evidence upon which the Board can decide the claim. See 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159(c)(4)(i) (2017); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran claims that his kidney was bruised during service and that he has experienced pain in the area since. Service treatment records reflect that he experienced contusions to his back and ribs and post-service treatment records reflect the Veteran may have genitourinary dysfunction. There is a lack of sufficient competent evidence to decide whether service connection is warranted for a kidney disability. Therefore, the Board finds that a remand is warranted in order to obtain a VA examination and medical opinion that addresses the nature and etiology of the Veteran's claimed kidney disability. With regards to a tongue disability, the Veteran states that he had a lesion removed from his tongue during service which resulted in stitches and that since service, he has had problems with his tongue, to include bumps and tenderness. See January 2016 correspondence. The Veteran's February 1968 entrance examination and service treatment records are silent with regards to complaints of or treatment for a tongue disability and the Veteran's mouth and throat were found objectively normal on his January 1971 separation examination. However, the electronic copy of the Veteran's January 1971 separation examination is of poor quality and it is unclear as to whether the note found under remarks and additional dental defects and diseases pertains to the Veteran's tongue. Furthermore, the Veteran's service treatment records appear incomplete, as there are no in-service dental treatment records associated with the Veteran's claims file. Therefore, the Board finds that a remand is warranted so that a readable copy of the January 1971 separation examination, and in particular, the note under remarks and additional dental defects and diseases, can be uploaded, and so that any outstanding service treatment records, including dental records, can be obtained and associated with the Veteran's electronic claims file. The Veteran has not been afforded a VA examination in connection with his claim for tongue disability. If service treatment records are obtained and reflect a dental disease or defect relating to the Veteran's tongue or mouth, a VA examination and medical opinion should be obtained that addresses the nature and etiology of the Veteran's claimed tongue disability. Accordingly, the case is REMANDED for the following actions: 1. A readable copy (or best copy available) of the January 1971 entrance examination should be obtained and uploaded into VBMS. The copy of the document uploaded into VBMS must be clearly readable, or noted why such a readable copy cannot be obtained. To the extent that readable copies are not made a part of the record, the Veteran must be notified of the unavailability of any missing documents and be afforded an opportunity to provide any copies of such records that he may have in his possession. 2. Attempt to obtain any outstanding service treatment records, including dental records, by contacting all appropriate records centers. All attempts and any negative responses should be documented in the Veteran's electronic claims file. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of any diagnosed kidney disability. The record and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with complete explanation in support of such a finding. The examiner must provide an opinion as to (a) Whether it is at least as likely as not (50 percent or greater possibility) that the Veteran has a current kidney disability. (b) If the examiner finds that the Veteran has a current kidney disability, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater possibility) that any diagnosed kidney disability began during or is caused by active service, to include as due to back and rib injuries sustained during an in-service motor vehicle accident; or began within one year after discharge from active service. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions, based on his or her clinical experience, medical expertise, and established medical principles. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. The examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the causal relationship. Less likely weighs against the claim. 4. If service treatment records are obtained and reflect a dental disease or defect relating to the Veteran's tongue or mouth, to include on the January 1971 separation examination and remarks and additional dental defects and diseases noted within, then schedule the Veteran for a VA examination to determine the nature and etiology of any tongue disability, to include scarring. The record and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with complete explanation in support of such a finding. The examiner must provide an opinion as to (a) Whether it is at least as likely as not (50 percent or greater possibility) that the Veteran has a current tongue disability, to include scarring. (b) If the examiner finds that the Veteran has a current tongue disability, to include scarring, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater possibility) that any diagnosed tongue disability began during or is caused by active service. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions, based on his or her clinical experience, medical expertise, and established medical principles. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. The examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the causal relationship. Less likely weighs against the claim. 4. After completing the above, and any other development as may be indicated, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).